Using Facebook to Trash the Boss

>Ranting in public about your boss has always been seen as a dumb career move, and for good reason: Courts have held that employees can be disciplined and even fired for trashing folks in the corner office, on grounds that it could impact a company's bottom line.

But a case out of Connecticut last week suggests that talking smack about your company's work conditions may be federally protected speech -- even if you do it on Facebook, Twitter, or your personal blog.

The National Labor Relations Board filed a complaint against an ambulance company in Connecticut alleging that management there illegally fired an employee who posted negative comments about her supervisor on her private Facebook page. The agency says that the speech is protected because she was discussing work conditions, and other employees also commented in support on her page.

The NLRB, an independent federal agency that defends employee-organizing rights, is basing the complaint on a long-existing provision of the National Labor Relations Act that provides protections to employees who get together and complain about a host of workplace issues - everything from conditions to benefits. Just because the discussions occur in cyber space doesn't make a bit of difference, said Jonathan Kreisberg, the NLRB's Regional Director in Connecticut.

"You have the right to communicate with your fellow employees about all your terms and conditions of employment," he said. "The fact that it was done over Facebook makes it unique but not unusual based on case law."

Kreisberg would not disclose the name of the worker or the content of her Facebook comments because the information would be used as evidence if the case goes to trial. But he said the comments involved her supervisor and an incident at work where her manager at American Medical Response of Connecticut questioned her about a customer complaint.

A spokesman for Emergency Medical Services Corporation, American Medical's parent company, says it "strongly disagrees" with the allegations made by NLRB and says the termination was based on "multiple, serious issues" and not simply the negative comments on Facebook.

The case could have a far-reaching impact on social media policies at the nation's employers who now prohibit any un-sanctioned company comments, and it could also be a boon for employee free speech on the Internet. About four out of five companies say they have a formal written policy for social networking sites, up from 67 percent in 2009, according to a study by email security firm Proofpoint conducted earlier this year. These policies typically prohibit employees from criticizing management or disclosing the inner workings of a company. About 20 percent of the companies surveyed said they had disciplined workers who violated their policies. That figure has doubled since the firm's 2009's survey.

In the Connecticut case, the company's blogging and Internet policy states employees are prohibited "from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission." In its filing, the NLRB declares this language "overly broad." Some labor lawyers agree. "Employers can not have a blanket prohibition of any adverse comments on a company or management on social media." said Peter D. Conrad, an employer-side employment attorney for Proskauer, an international management law firm.

Of course, there are limits to what an employee can say. Abusive, libelous, or pornographic comments are not protected, according to legal experts. And workers can be prohibited from divulging company secrets.

But ordinary diss-the-boss complaints amplified by Facebook, Twitter, or what ever cyber bullhorn you prefer? These may not be firing offenses after all.

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